Soda Wars: Business Groups Sue San Francisco To Defend First Amendment

A trio of business groups is suing San Francisco to protect the First Amendment rights of companies that sell and market sugary drinks.

On 24 July, the California Retailers Association, the American Beverage Association and the California State Outdoor Advertising Association filed a lawsuit to prevent mandatory warning labels on soda ads. The San Francisco ordinance, which was passed in June by nine votes to zero would cover soda ads on billboards, buses, transit shelters, posters and stadiums.

The plaintiffs argue “the city is trying to ensure that there is no free marketplace of ideas, but instead only a government-imposed, one-sided public ‘dialogue’ on the topic—in violation of the First Amendment.” They hope the District Court will overturn the city government’s decision.

The label, which must cover 20 percent of the ad, reads “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay.” The labels mimic warning signs placed on cigarette packs.

Drink manufacturers will not only have to comply with producing warning labels but will be subject to a wave of new restrictions. Baylen Linnekin, chief executive of Keep Food Legal, writes, “the law would prohibit soda makers from identifying the products they sell while protesting against the law on public space. It bars ads advertising soda, Frappuccinos, or some Jamba juices on public property.”

Linnekin identifies two violations of the First Amendment in the city ordinance. One being the government preventing speech with which it disagrees and two, compelling the speaker to switch their language to that preferred by the government.

Government efforts to label certain products with health warnings have taken a knock in recent years. The California plaintiffs may draw hope from the 2012 case where tobacco companies won a major victory after a federal appeals court struck down requirements for cigarette packs to display graphic health warnings.

Judge Janice Rogers Brown of the District of Columbia Circuit, who voted with the majority in the case, wrote “this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making ‘every single pack of cigarettes in the country a mini billboard’ for the government’s antismoking message.”

The Food and Drug Administration which was pursuing the policy has not attempted to reintroduce the graphic labels.

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